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1 Page 1 of 8 Defense Counsel Investigation of Alibi DOES WHAT HAPPENS ON FACEBOOK STAY 98 ON Ill. FACEBOOK? B.J. 366 DISCOVERY, ADMISSIBILITY, ETHICS, AND SOCIAL Defense ME... Beth C. Boggs, Misty L. Edwards Illinois Bar Journal Illinois Bar Journal July, 2010 Article Civil Practice DOES WHAT HAPPENS ON FACEBOOK STAY ON FACEBOOK? DISCOVERY, ADMISSIBILITY, ETHICS, AND SOCIAL MEDIA Increasingly, Lawyers are Mining Social Networking Sites Like Facebook for Information About Litigants, Witnesses, Jurors, and More. What are the Limits on Discovery and Admissibility of Content Gathered on Social Media Sites? What Legalethics Issues do These Sites Raise? This Article Looks at the Emerging Case Law Beth C. Boggs, Misty L. Edwards Copyright 2010 by Illinois State Bar Association; Beth C. Boggs, Misty L. Edwards As the popularity of social networking sites like Facebook, LinkedIn, Twitter, and MySpace grows, so does their importance in litigation. More and more attorneys use these rich archives of personal information to investigate the backgrounds of 1 parties, witnesses, opposing counsel, jurors, and even judges. They also look 2 for information that either corroborates or undermines their client's case. *367 Increasingly, attorneys use discovery to seek information on social networking 3 sites. However, the law governing discovery of online personal information is hardly 4 clear cut, and few courts have directly addressed the issue. This article looks at what kind of information lawyers search for, how they conduct discovery, whether and when the information they gather is or isn't admissible, and what legal-ethics issues they face in the social-media world. Mining social media for information about parties, witness, and jurors Investigating parties and witnesses. Lawyers use social networking sites to investigate the background of parties and witnesses, both to assess their credibility and to help determine how the jury or judge will perceive a witness. A surprising number of people are shockingly candid when posting to their public profile on a social networking site. A random search of public profiles reveals photos of people drinking, using illegal drugs, and engaging in other risky (and risqué) behavior. Site users discuss drinking, doing drugs, having sex, getting arrested, and the like. In addition, people in litigation often post either information about the case they are involved in or photographs that conflict with their claims. For example, in a forcible rape 5 case in Oregon, a teenager told the police she would never willingly have had sex. The defense attorney viewed her MySpace page, where she talked about parties, drinking, 6 and getting some and posted provocative pictures of herself. Based on what the attorney had read, she could see how the teenager would be perceived by jurors. She called her as a witness, and the grand jury dismissed the 7 charge. In Canada, a Vancouver woman claimed she was unable to enjoy her favorite 8 activities. Her testimony was that her injuries prevented her from dancing, hiking, and 9 cycling. Photos from her Facebook profile showed her cycling and hiking after her 10 injury. a1 RELATED TOPICS Criminal Law

2 Page 2 of 8 Uncovering juror misconduct. Jurors also undermine cases by using social media and other Internet sites to conduct research and communicate. In the Maine case Wilgus v Sirius, a juror sent the plaintiff's attorney an after a trial, asking whether he knew the plaintiff advocated binge drinking and using 11 mushrooms and marijuana, facts he learned from Facebook. The court questioned both the juror who sent the and the jury foreperson, then denied the motion for a 12 new trial. The juror was adamant that he conducted the research after the trial, and the jury foreperson stated there was no mention of the Facebook page during deliberations. In a Florida federal drug case, after eight weeks of trial, a juror admitted to the judge he 14 had been doing research on the case on the internet. When the judge questioned the remaining jurors, he discovered eight other jurors had been doing the same thing, and the judge declared a mistrial. In an Arkansas court, in a products liability suit, the defendant attempted to get a $12.6 million jury verdict overturned because a juror used Twitter to send updates during 16 trial. One post stated, oh and nobody buy Stoam. Its bad mojo and they'll probably 17 cease to Exist, now that their wallet is 12m lighter. The juror stated that his messages were sent after the trial, and the appeal was unsuccessful. In Maryland, the attorney for Mayor Sheila Dixon is seeking a mistrial in the mayor's 19 conviction for embezzlement. In that case, while the trial was ongoing, five of the jurors became Facebook friends and chatted on the social networking site, despite the 20 judge's instructions not to communicate with each other outside the jury room. Dixon's attorney stated that the Facebook friends became a clique that altered jury dynamics Service of process. In Australia, Face-book has been used for service of process of court documents. In December 2008, after several failed attempts at service, a lawyer won the right to serve a default judgment by posting the terms of the judgment on the defendant's Facebook wall Discovery and social media While case law on discoverability and social media sites is just beginning to emerge, most courts have allowed discovery of relevant information posted to Facebook and other sites. 23 In Mackelprang v Fidelity National Title Agency, a case from Nevada, the plaintiff alleged that the defendant sexually harassed her and caused her emotional distress. She alleged that one employee sent her sexually explicit s. She claimed another coerced her into having sex with him under the threat her husband would be fired and made inappropriate and explicit remarks to her on a regular basis. She complained of the sexual harassment to human resources, who allegedly *368 said 25 it would be taken care of but that if she brought it up again she would be fired. Since leaving her employment, she was diagnosed with post-traumatic stress disorder, major depressive disorder, and panic disorder stemming from the work environment she was subjected to. She also attempted suicide on several occasions The defendant sought to obtain communications on the plaintiff's MySpace accounts. A subpoena was served on MySpace, and MySpace produced public information about the accounts but not private s. The plaintiff had two accounts, one on which she identified herself as a 39-year-old single female and said I don't want kids, another where she described herself as a 39-year-old married female who loves her six children. The defendant filed a motion to compel the communications, alleging that the private communications may contain evidence that the plaintiff engaged in consensual sexually related communications with other persons on MySpace, including the defendants. The court denied the motion to compel, reasoning that the defendant had 24 18

3 Page 3 of 8 no more than speculative information about the persons with whom the plaintiff exchanged messages or the content of the s. The court wrote that if the defendants developed some basis beyond mere speculation to support a reasonable belief that the plaintiff engaged in sexual 29 communications with former co-employees it would reconsider its decision. The court did allow discovery of any communications relevant to assessing the credibility of her emotional distress claims. Unlike the court in Mackelprang, a federal court in California did not allow the discovery of any private messages on Facebook, MySpace and another social networking 31 site. In Crispin v Christian Audigier, Inc. et al., the plaintiff filed a motion to quash the subpoenas directed to Facebook, MySpace, and Media Temple for profile information and private s regarding any agreement made between the parties in a breach of contract action. The magistrate denied the plaintiff's motions. On appeal, the court found that the private messages were protected by the Stored Communications Act and reversed the magistrate's decision denying the motions 34 to quash with respect to the private communications. The court remanded the case to determine whether the portions of the subpoenas relating to the Facebook wall postings and MySpace comments would also need to be quashed. 36 In Beye v Horizon Blue Cross Blue Shield of New Jersey, the plaintiff alleged that the defendant, an insurance company, wrongfully refused to pay health benefits for children's eating disorders. The insurance company contended the disorders of the children were non-biologically based mental illnesses and thus not covered under the insurance policy. The defendant sought information on the children's MySpace or Facebook pages. The court ordered the plaintiffs to turn over the children's s, diaries, and other writings that were shared with other people about their eating disorders, including entries on MySpace or Facebook, noting the lower expectation of privacy where the person asserting the privacy right made the information public in the first place. 38 In Ledbetter v Wal-Mart Stores, Inc, two Colorado electricians were severely burned when the electrical system they were working on shorted out. They brought suit for their injuries, and one wife brought a claim for loss of consortium. During discovery, the defendant sent subpoenas to Facebook, MySpace, and Meetup.com, and the plaintiffs contended the items requested should be protected. The court held that a protective order entered earlier in the case would protect such information, that the plaintiffs put the confidential facts in issue (including the extent of injuries and nature of the consortium), and that the request was reasonably calculated to lead to the discovery of admissible evidence. 40 In TV v Union Township Board of Education, however, a New Jersey court reached the opposite conclusion. In TV, a teenager was sexually assaulted by a fellow middleschooler and claimed that the school failed to adequately supervise, which made the attack possible and contributed to her emotional distress. The court held that the information on the plaintiff's MySpace and Facebook pages was protected because the student's privacy interests prevailed, absent a particular showing 41 of relevance. The judge stated the defense had not undertaken enough discovery to 42 show it needed the messages to defend the school board adequately. Additionally, the court said, the defense must use traditional discovery to determine who might testify on the plaintiff's behalf and perhaps interview those people to see what they know about the plaintiff's mental state Overall, with the exception of the New Jersey case TV, where the court said the minor's privacy interests prevailed, the courts have allowed discovery of social networking site information relevant to the case at hand. Though courts are more reluctant to allow discovery of messages than the actual profile, several courts have allowed the discovery of social-media s if they are relevant. *369 Admissibility

4 Page 4 of 8 Assuming information from a social networking site is discoverable, the question becomes whether it is admissible. The decisions thus far indicate that if information is relevant, courts will allow it in as they would any other piece of evidence. 44 For example, in Telewizja Polska USA, Inc v Echostar Satellite, the defendant sought to admit copies of an archived Web site of a skinhead organization that posted the name, address, and picture of the victim, along with a call to attack him. The Illinoisbased federal district court rejected the objection that the pages were hearsay, holding they were merely images and text showing what the web page once looked like, were an admission by a party-opponent, and were admissible. 46 In State v Gaskins, the defendant in an Ohio statutory-rape case sought to introduce evidence that the victim held herself out as an 18-year-old on her MySpace page. The trial court admitted photographs of the victim that were posted on the page. 48 In the Missouri case State v Corwin, the defendant was convicted of attempted forcible rape. He was appealing his conviction based on the judge's refusal to enter entries of the victim's Face-book profile to impeach her testimony. The entries referred to drinking and partying by the victim, pictures of the victim dancing with young men, and an entry stating, I had a pretty rough night and I have the bruises to prove it. The court stated that none of the information was legally relevant to the fact 49 that the defendant was charged with attempted forcible rape of the victim. The quote the defendant tried to introduce was nine months after the incident in question. Legal ethics and social media Ethics and other peoples' pages. While information from social media sites may be both discoverable and admissible, ethical strictures can limit a lawyer's freedom to access a party's social networking page. The Philadelphia Bar Association Professional Guidance Committee addressed whether 52 an attorney could direct an investigator to become Facebook friends with a nonparty witness. The committee stated that doing so would be inherently deceitful 53 and unethical, even if the investigator used his own name. In addition, most jurisdictions have professional conduct rules regarding contact with an 55 opposing party if that party is represented by counsel. An invitation to become friends on Facebook and thereby gaining access to personal information about one another 56 would likely be impermissible direct contact. It may also violate the rule providing that a lawyer may not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. 57 Ethics and a lawyer's own page or blog. Ethical issues may also arise when attorneys post information on their Face-book or MySpace page (and on their blogs, which are not social media sites in the strict sense but raise many of the same issues). Lawyers may get into trouble for posting information about clients, opposing counsel, or the court. In Florida, an attorney was mad at a Fort Lauderdale judge and decided to blog about her, calling her an evil, unfair witch and questioning her motives and competence. He ended up getting a reprimand and fine for his blog. 51 In Illinois, an assistant public defender was blogging about her clients, using either just 60 their first name or their jail identification number. For example, she wrote: # This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because he's no snitch. I managed to talk the prosecutor into treatment and deferred prosecution, since we both know the older brother from prior dealings involving drugs and guns. My client is in college. Just goes to show you that higher education does not imply that you have any sense. She also wrote as follows:

5 Page 5 of 8 Dennis the diabetic whose case I mentioned in Wednesday's blog post, did drop as ordered, after his court appearance Tuesday and before allegedly going to the ER. Guess what? It was positive for cocaine. He was standing there in court stoned, right in front of the judge, probation officer, prosecutor and defense attorney, swearing he was clean and claiming ignorance as to why his blood sugar wasn't being managed well. She lost her job and is facing disciplinary action. An attorney in California caused a criminal conviction to be overturned b cause of his 63 blog postings. While serving as a juror in a felony trial in 2006, he posted details of 64 the trial on his blog. The attorney received a 45-day suspension, two years probation, paid $14,000 in legal fees, lost his job, and was required to take the MPRE within one year Judges may also get into trouble using Facebook. A North Carolina judge was reprimanded for friending a lawyer in a pending case, for posting and reading messages about the litigation, and accessing the Web site of the opposing party. Conclusion As social networking sites become more popular and attorneys become more knowledgeable about their potential, courts will address more cases about the discovery, admissibility, and ethics of accessing information on social networking sites. One thing is certain: attorneys should check to see if their clients and opponents have a profile on a social networking site. Counsel should also be addressing the issue with jurors to warn them against posting during trial Footnotes a Beth C. Boggs is the founding and managing partner of Boggs, Avellino, Lach & Boggs, LLC, which has offices in Belleville, Glen Carbon, Carbondale, St. Louis, and Kansas City. She received her JD degree, magna cum laude, from Southern Illinois University in Carbondale, in Misty L. Edwards is an associate at Boggs, Avellino, Lach & Boggs, LLC. She received her JD degree, summa cum laude, from Southern Illinois University in See Sean P. O'Donnell, The Use of Information Posted on Facebook and MySpace in Litigation, Subrogation and Recovery Alert, Oct 19, 2009, available at Karen L. Stevenson, What's On Your Witness's MySpace Page?, ABAnet.org, March 2008, available at myspace.html. O'Donnell, The Use of Information (cited in note 1). Stephanie Francis Ward, MySpace Discovery, Lawyers are mining social networks for nuggets of evidence, 93 ABA J 34 (Jan 2007), available at 8

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